Submission of the Assembly of First Nations (AFN) on Free ... among First Nations and other peoples

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    Submission of the Assembly of First Nations (AFN) on Free Prior and Informed Consent (FPIC) for the Expert Mechanism on the Rights of

    Indigenous Peoples

    1. Introduction The Assembly of First Nations (AFN) welcomes this opportunity to provide input into the Expert Mechanism’s study on free, prior and informed consent (FPIC). FPIC lies at the heart of the UN Declaration of the Rights of Indigenous Peoples and is essential to protecting and upholding the diverse range of rights affirmed in the Declaration and in the wider body of international human rights law as a whole. It is an aspect of our rights, as peoples, to the right to self-determination. The repeated affirmation of FPIC in the UN Declaration and the work of UN Treaty bodies and Special Mechanisms respond to the urgent necessity of respecting the right of Indigenous peoples, as peoples and nations, to make our own decisions about our lives and our futures, through our governments and representative institutions. For First Nations, consent means, quite simply, the ability to say no, to say yes, or to say yes but with conditions. It means having the decisions of our governments (and the will of our peoples), respected by other governments, institutions and private interests on any matter affecting our political, economic, cultural and social development. The terms ‘free,’ ‘prior’ and ‘informed’ define the essential preconditions for States such as Canada to meet their obligations under international law. These preconditions happen to be consistent with Canada’s Constitution respecting relations with First Nations. This includes protection from duress and coercion; disclosure of all necessary information; honesty and fair dealing on the part of government and other proponents; as well as capacity to deploy our own knowledge and values through the application of our own laws and to conduct, for example, assessments of the potential impacts; and assurance no actions will be taken until First Nations have had time and opportunity to come to a decision according to our own processes and traditions.

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    FPIC is more than a principle. FPIC is a well-established, widely accepted and essential expression of a wide range of international human rights, including the right of self-determination, and therefore must be respected, protected and upheld as a standard in international law. FPIC serves as a procedural safeguard for other human rights and therefore should also be applied as a precautionary human rights standard. More than 10 years have now passed since the global adoption of the UN Declaration as a body of minimum standards for the realization of the human rights of Indigenous peoples. This decade has seen significant developments in the exercise of FPIC by Indigenous peoples and in the acceptance of FPIC by states and the private sector. There are increasing examples of processes of mutual agreement conducive to the realization of FPIC. In Canada, First Nations have long struggled against the suppression of our right of self-determination. The essence of FPIC, of forging ties based on mutual respect and agreement, is a critical aspect of the nation-to-nation relationship that First Nations and Canada are committed to restore. Work must continue to realize and implement this essential aspect of relations between First Nations and Canada. However, we have observed that FPIC can be misunderstood or misrepresented – by those less familiar with international human rights law, and the role international law plays in understanding the rights of First Nations affirmed by the Canadian Constitution. This lack of capacity is evident in government, academia and other institutions, and constitutes a barrier to the full enjoyment of the rights affirmed by the UN Declaration. Considerable work lies ahead to establish the required mechanisms in law and policy to ensure that FPIC is upheld. The AFN commends the Expert Mechanism for undertaking its study of FPIC at such a crucial moment. Indigenous peoples, states and civil society will all benefit from a study of the meaning and importance of FPIC - one firmly grounded in an accurate understanding of the UN Declaration and the wider body of international law. At the same time, the AFN has concerns respecting some aspects of how FPIC appears to have been framed in the Expert Mechanism’s Concept Note for this study and the implicit assumptions that this framing may reflect. These concerns are of such importance that we want to present them from the outset of our submission.

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    First, the concept note appears to excessively focus on the specific language of a few provisions of the UN Declaration rather than on the wider framework of law, within and beyond the Declaration, on which interpretation of these provisions must be based. As the members of the Expert Mechanism are aware, individual provisions of the Declaration cannot be accurately understood in isolation. Each must be read in relation to each other and to the wider body of international law. This is a standard of interpretation applicable to all international instruments, but it is particularly important in respect to the provisions of the UN Declaration because the agreed working method of its drafting was to consolidate existing international standards, and not elaborate ‘new rights’ or adopt standards that fell below existing norms and state obligations. Accordingly, in Section 3 below our submission engages in some detail with understanding the foundations of FPIC in international law before further elaborating on the interpretation of FPIC in the UN Declaration. Second, we want to raise concerns about a possibly unintended implication of the third part of the concept note, which focuses on the question of whether or not FPIC is required in respect to specific rights. Our interpretation of FPIC in the UN Declaration and the wider body of international law identifies numerous situations where free, prior and informed consent is either mandatory in all instances or where it is reasonable to presume that FPIC is likely required. However, we strongly reject the notion that there are corresponding situations where it can be assumed from the outset that FPIC is not required. We submit that in every instance, there must be careful examination of the situation of the Indigenous peoples concerned and the potential implications of the decision in question, including the nature of the rights at stake, the heightened risk of harm that may have been created by previous unaddressed violations of their rights, and how the affected peoples themselves understand and assess the risks involved. There is no answer to the question ‘when is FPIC not required’ outside of such a specific analysis. Finally, we are concerned that the EMRIP study must clearly delineate consultation and free, prior and informed consent. We agree that the objective of obtaining mutual agreement is one of the defining characteristics of meaningful consultation. We also suggest there are a number of other characteristics necessary for consultation processes to comply with the standards of “consultation and cooperation” repeatedly called for the UN Declaration. In those instances where it can be determined that FPIC is not required, Indigenous peoples’ rights under international law nonetheless always require both meaningful consultation

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    and cooperation as the minimum standard of rights protection. “Cooperation” necessarily includes a consensual element. As indicated in article 38 of the UN Declaration, the minimum standard is “consultation and cooperation” – not mere consultation. Critically, where FPIC is required, consultation processes, no matter how robust, cannot be a substitute for consent. As we set out below, interpretations of FPIC as requiring nothing more than consultation are demonstrably inaccurate and do not serve the purpose of upholding Indigenous rights or promoting harmonious relations between Indigenous peoples and States. States should be counselled against efforts to deny Indigenous peoples the full and non-discriminatory observance of their rights by undermining application of FPIC.

    1.1 The Assembly of First Nations

    The AFN is the national, political organization of First Nation governments and their citizens, including those living on and off reserve in Canada. The role and function of the AFN is to serve as a nationally delegated forum for determining and harmonizing effective, collective and cooperative measures on any subject matter that the First Nations delegate for review, study, response or action, and to advance the rights, positions and aspirations of First Nations. The AFN National Executive is made up of National Chief Perry Bellegarde, ten Regional Chiefs, and the chairs of the Elders, Women’s and Youth Councils of the AFN. The role of the National Chief and the AFN is to advocate on behalf of First Nations as directed by Chiefs-in-Assembly. The AFN convenes at least two national meetings per year, with an open invitation to all Chiefs and delegates from 634 First Nations, representing more than 900,000 Indigenous Peoples across Canada. At these meetings, resolutions of the Chiefs-in-Assembly are passed which provide direction, guidance, positioning and planning of the AFN for the coming years.

    Chiefs-in-Assembly have passed many resolutions to support all First Nations in their work to ensure the full and meaningful implementation of the United Nations Declaration on the Rights of Indigenous Peoples. A few examples of these include:

    • Support for Bill C-262: An Act to ensu